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‘You Want to Get Them While the Teardrops are Warm’: Prosecutors Swap Strategies for Turning Overdose Deaths into Homicides

Ocean County Prosectutor’s Office (YouTube)

‘You Want to Get Them While the Teardrops are Warm’: Prosecutors Swap Strategies for Turning Overdose Deaths into Homicides

Ocean County New Jersey Prosecutor Joseph Coronato said the best way to prosecute a drug overdose as a homicide is to find a witness close to the victim who may have used or bought drugs with them. “You want to get them in an emotional state,” Coronato said. “You want to get them while the teardrops are warm.” What Coronato neglected to mention is that the witnesses may wind up with a homicide charge.

Coronato explained his tactics during a November 15 webinar entitled, “Strategies for Prosecuting Drug-Induced Homicide Cases,” hosted by the Association of Prosecuting Attorneys, a Washington D.C.-based nonprofit. The webinar’s premise is that prosecuting overdoses as homicides is an effective tool in law enforcement’s “heroin response strategy.” Under what’s called “strict liability,” a person who provides drugs that lead to a fatal overdose can be charged with manslaughter or homicide, depending on the state.

Last week, The Appeal reported on research that tallied a 300 percent increase in “drug-induced homicide” prosecutions from 2011 to 2016. Analyses by the Drug Policy Alliance and the Health In Justice Initiative at Northeastern University’s Law School demonstrate that these prosecutions increase the likelihood of fatal overdoses — the very problem they’re trying to solve — by scaring drug users and witnesses away from calling 911.

Edward Beach, a drug intelligence officer at the High Intensity Drug Trafficking Area program in New York and New Jersey, explained during the webinar that he targets “major traffickers.” But most drug-induced homicide prosecutions don’t target “major traffickers” — they target friends, family and romantic partners of the overdose victim.

“Out of the 32 drug-induced homicide prosecutions identified by the New Jersey Law Journal in the early 2000s, 25 involved prosecution of friends of the decedent who did not sell drugs in any significant manner,” according to the Drug Policy Alliance.

A case brought by Paul Caccaviello, assistant District Attorney in Berkshire County Massachusetts, illustrates how prosecutors target peers of the overdose victim, not big-time dealers. Caccaviello explained during the webinar how in 2008 he successfully prosecuted Dawn M. Cote for selling multiple fentanyl patches that led to her friend’s death. Cote had no history of drug dealing. She was prescribed the fentanyl patches and then sold them to her “best friend” and neighbor, who overdosed. In November 2009, Cote was sentenced to six years in state prison for manslaughter.

“Every overdose scene becomes a homicide scene,” Elie Honig, director of the New Jersey Attorney General’s Criminal Division, wrote in materials accompanying the webinar. “So there has to be … a cultural shift to investigating these types of cases.” Drug overdose is now the leading cause of accidental death among Americans 50 and under. So now, in the eyes of prosecutors, these deaths are all potential homicide cases.

Finding a Place for Restorative Justice

A new project chronicles the myriad alternative visions of justice taking place in the U.S. and Canada.

Finding a Place for Restorative Justice

A new project chronicles the myriad alternative visions of justice taking place in the U.S. and Canada.

Over the last ten years, criminal justice reform has gone mainstream. Ideas like reducing prison populations, finding alternatives to incarceration, and accounting for the human and fiscal toll of mass incarceration are now far from radical or partisan; they’re on the lips of centrist politicians and Americans of many stripes. In the background of that growing discussion lingers an important question: If the criminal justice system as we know it transforms dramatically, shrinks, or becomes obsolete … then what?

That discussion often leads to another concept that has grown in popularity in recent years: restorative justice.

“Even if there were no prisons, we would still need a way to deal with what to do when someone hurts someone else,” says Professor Sonya Shah, co-author of a new report from the Zehr Institute for Restorative Justice.

Because there are so many permutations of restorative justice practiced by so many different groups, there is no shared definition or model. But in broad terms, this model of justice tends to revolve around a common community-based goal of addressing and repairing harms and violence outside of the traditional confines of the legal system. The diversity of approaches to that common goal is what led Shah and her colleagues to travel to five locations across the U.S. and Canada to meet with and listen to a variety of groups engaged in the practice.

The result of their work is the “Restorative Justice Listening Project.” Released on November 16th, the report chronicles what they learned from visiting restorative justice practitioners in Minnesota, Maryland, British Columbia, California’s Bay Area, and the Navajo Nation of New Mexico.

For many indigenous communities, the practice of responding to conflict without incarceration or courts is nothing new. While they might not label it restorative justice, taking a holistic approach to harms caused by community members is a long-held tradition, whereas many Western communities are only recently beginning to think beyond the tried and true “lock ’em up” response to crime.

“One of the things we recognized in this whole process is that we really have to uplift the indigenous, and the many types of indigenous restorative justice,” says Shah. She noted “the typical Western tendency” to claim expertise after “learning one thing from one indigenous person,” rather than talking to many different groups.

“We are such a multicultural society, but I do think there are way for us to cross into each other’s worlds with a lot of respect, humility, and growth,” Shah tells The Appeal.

In addition to the work of indigenous practitioners, Shah notes that criminal justice reform was often part of discussions in the listening groups. While prosecutorial diversion programs for certain offenses and other alternatives to incarceration are growing increasingly common, Shah notes that many of those programs are still punitive in nature. As prosecutors who fashion themselves as progressives have risen to prominence, so has a tension between what it means to protect and heal a community from harm, what it means to serve justice, and how to do both at once in a way that doesn’t ultimately cause more harm.

“I think some district attorneys would say, ‘[Restorative justice] would eventually work us out of a job,’” says Shah. “That’s the whole point. How do we uplift that paradigm of a police officer and DA that’s thinking about what’s better for a community, and not what’s punitive?”

“We created that [punitive] narrative,” Shah continues, “So we can uncreate it.”

That process of listening and learning across cultural boundaries is central to the Listening Project’s recommendations. But as the movement for restorative justice grows in popularity, so do the challenges it faces. Central to those challenges, the report notes, is how to avoid institutionalizing or “professionalizing” restorative justice through trainings or certifications. Many practitioners fear this would veer the practice away from its community-based origins and goals.

As Shah and her colleagues assess their findings and reflect on the broader movement, she emphasized that restorative justice isn’t intended to be a fix-all solution to the myriad conflicts facing communities. “It’s not a panacea,” says Shah. “It’s not meant to be the only strategy, it’s meant to be one strategy.”

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For a New Breed of Prosecutors, Justice Sometimes Entails a Second Chance

“I always thought there had to be some sweet spot between 15 months and forever.”

King County DA Dan Satterberg

For a New Breed of Prosecutors, Justice Sometimes Entails a Second Chance

“I always thought there had to be some sweet spot between 15 months and forever.”

In 2009, Washington Governor Chris Gregoire received an unusual request. Seattle District Attorney Dan Satterberg encouraged her to grant the clemency application of Gerald Hankerson, who had spent more than two decades in prison for aggravated murder.

“I thought he was overcharged,” said Satterberg. “He was an accomplice. He always said, ‘I didn’t plan on the death of [the victim]; I didn’t know he had a knife.’”

Pardons and clemency are two of the most powerful tools available to state or federal officials seeking to right an injustice. Yet successful petitions for either form of relief are almost as rare as the prosecutors who recommend them. Fourteen states grant “frequent and regular” pardons to more than 30 percent of applicants, according to the Restoration of Rights Project, while 19 states have granted few or no pardons in the last 20 years. (The clemency patterns of the remaining states are classified as “rare” or “infrequent/uneven.”)

Illinois offers one example. Republican Governor Bruce Rauner announced in December 2016 that he would prioritize clearing the state’s extensive backlog of clemency applications. He approved only three percent of the 2,333 petitions he reviewed. One of the 79 pardons applications he granted had been waiting for review since 2003. (His predecessor, Governor Pat Quinn, approved 36 percent of the petitions he reviewed while in office.) Clemency rates at the federal level are also notoriously low.

To date, Satterberg has advocated for clemency for 17 prisoners, most of whom were sentenced after Washington became the first state in the country to enact a “three strikes law” in 1993. Prior to the state legislature’s enactment of this law, a third felony conviction carried a minimum prison sentence of 15 to 20 months. After, a third conviction all but guaranteed a defendant would die in prison.

“I always thought there had to be some sweet spot between 15 months and forever,” Satterberg explained to The Appeal.

All 17 individuals whose release Satterberg recommended had their petitions granted — a strong reminder of the influence and power prosecutors wield.

“Any time a prosecutor endorses clemency, that’s a pretty persuasive argument for me,” former Governor Gregoire told The Appeal. “Prosecutors and defense counsel can grant you a whole lot more perspective on the case, the individual, and the circumstances [of their offense] than the record alone would tell you.”

Satterberg believes he can effectively assess an individual’s ability to safely return to society by looking beyond their conviction. Hankerson won Satterberg’s support because of his extraordinary record while incarcerated. After earning his GED in prison, he went on to lead the Black Prison Caucus and the Concerned Lifers Organization. Today, Hankerson is the President of the Seattle chapter of the NAACP.

Of the 17 petitioners whose release Satterberg supported, only one has reoffended — David Conyers, who was re-arrested and charged with multiple counts of second-degree robbery within two years. Satterberg calls Conyer’s case “a spectacular failure,” noting that many criticized his decision, demanding, “What are you doing? You had him for life.” But he doesn’t intend to back away from supporting meritorious clemency petitions.

“There’s always a risk when you go to bat for somebody, but the only way to avoid that is to always seek the maximum sentence every time — and that’s not really justice either,” says Satterberg. “We’re not holding back just because one guy didn’t take advantage of this extraordinary opportunity.”

Satterberg is not alone in envisioning his role as more expansive than just securing the most severe punishment possible against defendants. He is part of a small but growing number of prosecutors who are rethinking what it means to deliver justice to the communities they’re elected to serve.

“There’s a new breed of prosecutors that see their jobs very differently, and believe success isn’t defined by how many cases they indict, or how long sentences are, but whether they’ve made their community safer and healthier,” says Miriam Krinsky, a former federal prosecutor and founder of Fair and Just Prosecution, a nonprofit organization that supports and provides technical assistance to reform-focused DAs.

For example, Albany County DA David Soares’ “Clean Slate” initiative “aims to reverse engineer the flow of young adults away from traditional criminal justice system” by, among other things, addressing how hard it can be for them to re-enter society after serving a prison sentence. His initiative includes an expungement program that allows “non-violent or low-level offenders who have shown positive rehabilitation” to apply to have their criminal records sealed.

Wyandotte County, Kansas, District Attorney Mark Dupree is another member of this new cohort. Dupree, the state’s first black DA, was raised in a Kansas City neighborhood known for high crime rates.

“Growing up, I never saw a police officer unless they were arresting someone or a prosecutor unless they were in our church looking for a witness to help prosecute someone,” Dupree tells The Appeal.

Dupree, who was elected in 2016, plans to prioritize alternatives to prison programs, such as drug and mental health courts and probation. And Dupree emphasizes that prosecutors must assess each case individually, looking beyond a person’s crime to assess his or her life circumstances holistically. He also requires every prosecutor in his office to speak at local schools and to regularly hold community forums. Dupree hopes that bringing prosecutors and community members together in such forums will soften the views of both sides toward one another, and thus increase overall public safety.

“When you see the police on a consistent basis arresting people and destroying families, you become numb and annoyed with the justice system,” says Dupree. “I’m trying to give knowledge and understanding that the justice system is here to serve and protect you.”

Like Satterberg, Dupree conceives of his role as more expansive and complex than just slapping all defendants with the longest possible sentence.

“Everybody makes mistakes, and some mistakes are seen faster and heard louder than other people’s mistakes,” says Dupree. “But we should never allow ourselves to get caught up in the hype and forget the focus of justice. Sometimes justice requires a second chance.”

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